No. 43319 (Change in Proposed Rule): Rule R156-63b. Security Personnel Licensing Act Armored Car Rule

DAR File No.: 43319
Filed: 03/07/2019 03:34:04 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In response to public comments received after publication of the original proposed amendments upon which this change is based, and after further review by the Security Services Licensing Board, the Division of Occupational and Professional Licensing (Division) and the Security Services Licensing Board propose these further modifications to the continuing education requirements for licensed armored car security officers.

Summary of the rule or change:

In Sections R156-63b-102, these proposed amendments update citations. In Section R156-63b-304, these proposed amendments modify the continuing education requirements as follows: 1) a licensee's 16 hours of "core continuing education" during each renewal cycle must cover each one of the core topics; 2) the topic "management of aggressive behavior, use of force, de-escalation techniques" is removed as an optional professional continuing education topic, and is added as a required core continuing education topic; 3) unlimited hours of core, professional, or firearm continuing education credit may be granted for courses completed in blocks of time of not less than one hour in formally established classroom courses, seminars, or conferences; 4) unlimited hours of professional continuing education credit may be granted for internet courses (but internet courses will not qualify for core or firearm continuing education credit); 5) professional, not core, continuing education credit may be granted for hours of service on the Contract Security Services Licensing Board, a state or national security board, or the Contract Security Education Advisory Peer Committee; 6) a licensed armored car security company must ensure that the continuing education courses offered to its employees meet the requirements of this section; 7) the Division may assign monitors at no charge to attend a continuing education course to evaluate the course and instructor; 8) it is clarified that the educational and training programs required for initial licensure may not be used to satisfy any continuing education requirement, in whole or in part; and 9) formatting changes are made for clarity, and citations are updated. In Section R156-63b-502, these proposed amendments update citations and add to the definitions of unprofessional conduct failing as an armored car security company to comply with Subsection R156-63b-304(6) regarding continuing education courses/providers. (EDITOR'S NOTE: The original proposed amendment upon which this change in proposed rule (CPR) was based was published in the November 15, 2018, issue of the Utah State Bulletin, on page 96. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the CPR and the proposed amendment together to understand all of the changes that will be enforceable should the agency make this rule effective.)

Statutory or constitutional authorization for this rule:

• Subsection 58-1-202(1)(a)
• Subsection 58-1-106(1)(a)
• Section 58-63-101

Anticipated cost or savings to:

the state budget:

No state government entities will be directly affected by these further amendments because the constrained parties consist only of licensed armored car security officers and the businesses that employ them. Additionally, there are no state government entities acting as businesses that will be impacted. State government entities that employ such businesses are not expected to experience any indirect fiscal costs from these further amendments because these changes are not expected to increase costs for security businesses.

local governments:

No local government entities will be directly affected by these further amendments because the constrained parties consist only of licensed armored car security officers and the businesses that employ them. Additionally, there are no local government entities acting as businesses that will be impacted. Local government entities that employ such businesses are not expected to experience any indirect fiscal costs from these further amendments because these changes are not expected to increase costs for these businesses.

small businesses:

There are a total of eight licensed armored car security businesses in Utah (NAICS 561613), six of which are small businesses. These small businesses are not expected to be cost affected by these further substantive amendments. The changes to Section R156-63b-304 merely fine-tune continuing education (CE) topic requirements, and clarify the CE supervision and record-keeping requirements expected from these businesses, most of which should already be taking place in the industry. The new provision in Section R156-63b-502, which adds to the definitions of unprofessional conduct failing as an armored car security company to comply with Subsection R156-63b-304(6) regarding continuing education courses/providers, is similar to the other unprofessional conduct provisions of Section R156-63b-502 in that the goal is to provide a deterrent, such that there is a $0 net impact on all parties involved. Therefore, for the typical member of the affected party, these proposed rule changes are expected to have no direct or indirect fiscal impact. However, inestimable fiscal impacts of the underlying rule include any money a business adjudicated as having violated this rule might have to pay to the state budget in the form of an administrative penalty. This amount is inestimable, both because it applies only in cases of unforeseeable violations, and because the penalty assessed may vary depending on the circumstances of the violation.

persons other than small businesses, businesses, or local governmental entities:

There are currently 463 armored car security officers in Utah. Licensed individuals are not expected to be directly cost affected by any of these further substantive amendments. In particular, the changes to Section R156-63b-304 merely fine-tune continuing education topic requirements and clarify the expected record-keeping requirements.

Compliance costs for affected persons:

As outlined in the previous sections, affected persons are not expected to be impacted by these amendments.

Comments by the department head on the fiscal impact the rule may have on businesses:

S.B. 197, passed during the 2018 General Session, amended the Security Personnel Licensing Act (Act) with respect to the basic education and training hours required for initial licensure as an armored car security officer. The Act now requires "a minimum of eight" hours of classroom or online curriculum instead of 24 hours. In accordance with this legislative guidance, and pursuant to the review and recommendations of the Security Services Licensing Board to improve armored car security officer education and training, these proposed rule amendments modify the initial basic education and training requirements. In this regard, the initial basic education and training requirements are reduced to reflect the change in the statute. In response to public comments received after publication of the original proposed amendments upon which this change is based, and after further review by the Security Services Licensing Board, the Division and the Security Services Licensing Board propose these further modifications to the continuing education requirements for licensed armored car security officers. Additional Changes: The substantive additional changes are summarized as follows: In Section R156-63b-304, these proposed amendments modify the continuing education requirements as follows: 1) a licensee's 16 hours of "core continuing education" during each renewal cycle must cover each one of the core topics; 2) the topic "management of aggressive behavior, use of force, de-escalation techniques" is removed as an optional professional continuing education topic, and is added as a required core continuing education topic; 3) unlimited hours of core, professional, or firearm continuing education credit may be granted for courses completed in blocks of time of not less than one hour in formally established classroom courses, seminars, or conferences; 4) unlimited hours of professional continuing education credit may be granted for internet courses (but internet courses will not qualify for core or firearms continuing education credit); 5) professional, not core, continuing education credit may be granted for hours of service on the Contract Security Services Licensing Board, a state or national security board, or the Contract Security Education Advisory Peer Committee; 6) a licensed armored car security company must ensure that the continuing education courses offered to its employees meet the requirements of this section; 7) the Division may assign monitors at no charge to attend a continuing education course to evaluate the course and instructor; and 8) it is clarified that the educational and training programs required for initial licensure may not be used to satisfy any continuing education requirement, in whole or in part. In Section R156-63b-502, these proposed amendments update citations and provide an additional definition of unprofessional conduct to include failing as an armored car security company to comply with Subsection R156-63b-304(6) regarding continuing education courses/providers. FISCAL IMPACTS -- Small Businesses (less than 50 employees): There are a total of eight licensed armored car security businesses in Utah (NAICS 561613), six of which are small businesses. These small businesses are not expected to be cost affected by these substantive additional amendments. The changes to Section R156-63b-304 merely fine-tune continuing education topic requirements and clarify the continuing education supervision and record-keeping requirements expected from these businesses, most of which should already be taking place in the industry. The new provision in Section R156-63b-502, which adds to the definitions of unprofessional conduct, is similar to the other unprofessional conduct provisions of Section R156-63b-502 in that the goal is to provide a deterrent, such that there is a zero net impact on all parties involved. Therefore, for the typical member of the affected group of licensees, these proposed rule changes are expected to have no direct or indirect fiscal impact. However, inestimable fiscal impacts of the underlying rule include any money a business might have to pay to the state budget in the form of an administrative penalty, if adjudicated as having violated this rule. This amount is inestimable, both because it applies only in cases of unforeseeable violations, and because the penalty assessed may vary depending on the circumstances of the violation. Non-Small Businesses (50 or more employees): Non-small businesses are not expected to be directly cost affected by these further substantive amendments. The changes to Section R156-63b-304 merely fine-tune CE topic requirements, and clarify the CE supervision and record-keeping requirements expected from these businesses, most of which should already be taking place in the industry. The new provision in Section R156-63b-502, which adds to the definitions of unprofessional conduct, is similar to the other unprofessional conduct provisions of Section R156-63b-502 in that the goal is to provide a deterrent, such that there is a zero net impact on all parties involved. Therefore, for the typical member of the affected group of licensees, these proposed rule changes are expected to have no direct or indirect fiscal impact. However, inestimable fiscal impacts of the underlying rule include any money a non-small business might have to pay to the state budget in the form of an administrative penalty, if adjudicated as having violated this rule. This amount is inestimable, both because it applies only in cases of unforeseeable violations, and because the penalty assessed may vary depending on the circumstances of the violation. Original Proposed Amendments: A discussion of the fiscal impact of the original proposed amendment was published in the November 15, 2018, issue of the Utah State Bulletin, Vol. 2018, No. 22, at pages 96-103. Those proposed rule changes may have an ongoing fiscal cost for licensed security officers due to the additional 16 hours of CE per two-year renewal period that will be required for them to keep active licensure. It is estimated that average costs to course attendees, if they were required to pay for all of their training for the full additional 16 hours required by these proposed amendments, would range between $75 (for a licensee earning 16 hours by attending a 16-hour course) and $100 (for a licensee earning 16 hours by attending four four-block-hour courses at $25 each). Therefore, a licensee could experience a total cost of approximately $37.50 to $50 per year ongoing. Based on the current total of 463 armored car security officers in Utah, if it were assumed that every one of these licensees had to pay for all of their additional continuing education training, the licensees could experience a fiscal cost of approximately $20,256 ongoing (average additional fees of $43.75 annually x 463 licensees). These costs are not listed in the ?Other Persons? line item in the table below, but are reflected in the "Other Persons? line item in the table printed in the November 15, 2018, issue of the Utah State Bulletin, Vol. 2018, referenced above.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Jana Johansen at the above address, by phone at 801-530-6621, by FAX at 801-530-6511, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/01/2019

Interested persons may attend a public hearing regarding this rule:

• 04/11/2019 09:00 AM, Heber Wells Bldg, 160 E 300 S, North Conference Room, first floor, Salt Lake City, UT

This rule may become effective on:

05/08/2019

Authorized by:

Mark Steinagel, Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Person

$0

$0

$0

Total Fiscal Costs:

$0

$0

$0

Fiscal Benefits

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Benefits:

$0

$0

$0

Net Fiscal Benefits:

$0

$0

$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non-Small Businesses (50 or more employees)

There are a total of eight licensed armored car security businesses in Utah (NAICS 561613), two of which are non-small businesses. These non-small businesses are not expected to be directly cost affected by these further substantive amendments. The changes to Section R156-63b-304 merely fine-tune CE topic requirements and clarify the CE supervision and record-keeping requirements expected from these businesses, most of which should already be taking place in the industry. The new provision in Section R156-63b-502 which adds to the definitions of unprofessional conduct failing as an armored car security company to comply with Subsection R156-63b-304(6) regarding continuing education courses/providers is similar to the other unprofessional conduct provisions of Section R156-63b-502 in that the goal is to provide a deterrent, such that there is a $0 net impact on all parties involved. Therefore, for the typical member of the affected party, the proposed rule is expected to have no direct or indirect fiscal impact. However, inestimable fiscal impacts of the underlying rule include any money a non-small business adjudicated as having violated the rule might have to pay to the state budget in the form of an administrative penalty. This amount is inestimable, both because it applies only in cases of unforeseeable violations, and because the penalty assessed may vary depending on the circumstances of the violation.

 

The executive director of the Department of Commerce, Francine A. Giani, has reviewed and approved this fiscal analysis.

 

 

R156. Commerce, Occupational and Professional Licensing.

R156-63b. Security Personnel Licensing Act Armored Car Rule.

R156-63b-102. Definitions.

In addition to the definitions in Title 58, Chapters 1 and 63, as used in Title 58, Chapters 1 and 63 or this rule:

(1) "Approved basic education and training program" means a basic education and training program that:

(a) meets the standards and is approved by the Division as set forth in Section R156-63b-602; and

(b) has the content required by Section R156-63b-603.

(2) "Approved basic firearms training program" means a firearms education and training program that:

(a) meets the standards and is approved by the Division as set forth in Section R156-63b-602; and

(b) has the content required by Section R156-63b-604.

(3) "Armored car company" includes a peace officer who engages in providing security or guard services when acting in a capacity other than as an employee of the law enforcement agency by whom the peace officer is employed.

(4) "Armored car company" does not include a company which hires as employees, individuals to provide security or guard services for the purpose of protecting tangible property, currency, valuables, jewelry, SNAP benefits as defined in Section 35A-1-102, or other high value items that require secured delivery from one place to another and are owned by or under the responsibility of that company, as long as the security or guard services provided by the company do not benefit any person other than the employing company.

(5) "Authorized emergency vehicle" is as defined in Subsection 41-6a-102(3).

(6) "Compensated", as used in Subsection 58-63-302(1)(c)(viii)(A), means remuneration in the form of W-2 wages unless the qualifying agent is an owner of a contract security or armored car company, in which case "compensated" means the owner's profit distributions or dividends.

(7) "Conviction" means criminal conduct where the filing of a criminal charge has resulted in:

(a) a finding of guilt based on evidence presented to a judge or jury;

(b) a guilty plea;

(c) a plea of nolo contendere;

(d) a plea of guilty or nolo contendere which is held in abeyance pending the successful completion of probation;

(e) a pending diversion agreement; or

(f) a conviction which has been reduced pursuant to Section 76-3-402.

(8) "Corporate officer" as defined in Subsection 58-63-102(9), includes an individual who is on file with the Division of Corporations and Commercial Code as a limited liability company's company officer or "governing person" as defined in Subsection 48-3a-102(7), or as a limited partnership's "general partner" as defined in Subsection 48-2[3]e-102(8).

(9) "Employee" means an individual providing services in the armored car industry for compensation when the amount of compensation is based directly upon the armored car services provided, and upon which the employer is required under law to withhold federal and state taxes, and for whom the employer is required under law to provide worker's compensation insurance coverage and pay unemployment insurance.

(10) "Instructor" means a person who directly facilitates learning through means of live in-class lecture, group participation, practical exercise, or other means, who has fulfilled the instructor experience and training requirements set forth in Section R156-63b-602.

(11) "Qualified continuing education" means continuing education that meets the standards set forth in Subsection R156-63b-304.

(12) "Qualifying agent" means a natural person who meets all of the requirements set forth in Subsection 58-63-302(1)(c).

(13) "Soft uniform" means a business suit or a polo-type shirt with appropriate slacks. The coat or shirt has an embroidered badge or armored car company logo that clips onto or is placed over the front pocket.

(14) "Supervision" means general supervision as defined in Subsection R156-1-102a(4)(c).

(15) "Trainer" has the same meaning as "instructor".

(16) "Unprofessional conduct," as defined in Title 58, Chapters 1 and 63, is further defined, in accordance with Subsection 58-1-203(1)(e), in Section R156-63b-502.

 

R156-63b-304. Continuing Education for Armored Car Security Officers as a Condition of Renewal.

In accordance with Subsections 58-1-203(1)(g) and 58-1-308(3)(b), the following continuing education requirements are established as a condition of renewal or reinstatement of licenses issued under Title 58, Chapter 63 in the classifications of armored car security officer:

(1) An armored car security officers shall complete at least 32 hours of continuing education during each two-year renewal cycle. A minimum of 16 hours shall be core continuing education; the remaining hours may consist of professional continuing education or core continuing education.

(a) "Core continuing education" is defined as education [covering one or more]completed during a two-year renewal cycle, that covers each of the following topics:

(i) company operational procedures manual;

(ii) applicable state laws and rules;

(iii) legal powers and limitations of private security officers;

(iv) observation and reporting techniques;

(v) ethics;

(vi) management of aggressive behavior, use of force, de-escalation techniques;

(vii) emergency techniques; and

(viii) a recognized basic life saving course to obtain or maintain[current] certification in:

(A) cardiopulmonary resuscitation(CPR);

(B) automated external defibrillator (AED);

(C) first aid; or

(D) any other recognized basic life-saving skills.[certification;]

(b) "Professional continuing education" is defined as education covering one or more of the following topics:

(i) executive protection;

(ii) basic self-defense;

(iii) driving techniques for the security professional;

(iv) escort techniques;

(v) crowd control;

(vi) access control and the use of electronic detection devices;

(vii) use of defensive items and objects;

(viii) [management of aggressive behavior, use of force, de-escalation techniques;

(ix) ]homeland security involving bomb threats and anti-terrorism;[ or]

( ix) Americans with Disabilities Act (ADA) compliance ; or

(x) any other topic relevant to the education of armored car security professionals.

(2) In addition to the 32 hours of core/professional continuing education, an armored car security officer shall complete at least 16 hours of continuing firearms education and training during each two-year renewal cycle. Continuing firearms education and training:

(a) shall be completed in four-hour blocks every six months;

(b) may not include any hours for the continuing education requirement in Subsection R156-63b-304(2);

(c) shall comply with the provisions of Title 15, USC Chapter 85, the Armored Car Industry Reciprocity Act; and

(d) shall include at minimum:

(i) live classroom instruction concerning:

(A) restrictions in the use of deadly force; and

(B) firearms safety on duty, at home, and on the range; and

(ii) a recognized practical pistol recertification course on which the licensee achieves a minimum score of 80% using regular or low light conditions.

(3) Credit for continuing education shall be recognized as follows:

(a) unlimited hours for core, professional, and firearm continuing education completed in blocks of time of not less than one hour in formally established classroom courses, seminars, or conferences;

(b) unlimited hours for professional continuing education provided via the Internet, if the course provider verifies registration and participation in the courses by means of an exam which demonstrates that the participant has learned the material presented;

(c) two hours for each hour of lecturing, training, or instructing a course, if it is the first time the material has been taught during the preceding 12 months, up to a maximum of 12 hours during each two-year renewal period; the type of credit received - whether core, professional, or firearms education and training - shall be based on the subject taught; and

(d) one [core]professional continuing education hour for each hour of service on the Contract Security Services Licensing Board, a state or national security board, or the Contract Security Education Advisory Peer Committee, up to a maximum of six hours during each two-year renewal period.

(4) Modification of Required Continuing Education Hours.

(a) A licensee who fails to complete the required four hours of continuing firearms education and training within the appropriate six-month period shall complete one and one half times the number of hours the licensee was deficient for the reporting period ("penalty" hours). Penalty hours shall not satisfy in whole or in part any of the continuing firearms education and training hours required for subsequent renewal of the license.

(b) If a renewal period is shortened or lengthened to effect a change of renewal cycle, the continuing education hours required for that renewal period shall be increased or decreased proportionately.

(c) The Division may defer or waive continuing education requirements as provided in Section R156-1-308d.

(5) [Each]A licensee shall maintain documentation showing compliance with the requirements of this section, such as certificates of completion or course handouts and materials, for a period of three years from the end of the renewal period for which the continuing education is due.

[(b) A continuing education provider shall give a participants who complete the continuing education a completion certificate or form which contains the:

(i) name of the participant;

(ii) date the course was taken;

(iii) location where the course was taken (or type of Internet course);

(iv) title of the course;

(v) name of the continuing education provider and instructor;

(vi) exam score for any exam taken; and

(vii) number of continuing education hours completed.]

(6) An armored car security company licensed under this chapter shall:

(a) review continuing education courses and approve for its employees only those courses that meet the requirements of this section;

(b)(i) maintain accurate records of its approved continuing education courses and of each employee's attendance and course completion; and

(ii) make such records available for audit by representatives of the Division; and

(c) ensure that each provider of its approved continuing education courses:

(i) maintains accurate records of attendance and course completion, by individual licensee, that are available for review by the licensed company, the Division, and the licensee;

(ii) provides individuals completing the course a certificate identifying the:

(A) name of the individual;

(B) date the course was taken;

(C) location where the course was taken or type of Internet course taken;

(D) title of the course identifying its topic(s) as outlined in Subsection R156-63b-304(1);

(E) name of the continuing education provider and instructor;

(F) exam score for any exam taken; and

(G) number of continuing education hours completed.

(7) On a random basis, the Division may assign monitors at no charge to attend a continuing education course for the purposes of evaluating the course and the instructor.

([6]8) The initial licensure education and training programs defined in Subsections R156-63b-102(1) and (2)[, which are required to obtain initial licensure as an armored car security officer,] may not be used to satisfy , in whole or in part , any of the continuing education requirements of this section.

 

R156-63b-502. Unprofessional Conduct.

"Unprofessional conduct" includes the following:

(1) making any statement that would reasonably cause another person to believe that an armored car security officer functions as a law enforcement officer or other official of this state or any of its political subdivisions or any agency of the federal government;

(2) utilizing a vehicle with markings, lighting, and/or signal devices that imply or suggest that the vehicle is an authorized emergency vehicle as defined in Subsection 41-6a-102(3) and Section 41-6a-310[ and in Title R722, Chapter 340];

(3) utilizing a vehicle with an emergency lighting system that violates the requirements of Section 41-6a-1616 of the Utah Motor Vehicle Code;

(4) wearing a uniform, insignia, or badge that would lead a reasonable person to believe that the armored car security officer is connected with a federal, state, or municipal law enforcement agency;

(5) being incompetent or negligent as an armored car security officer or as an armored car company so as to cause injury to a person or create an unreasonable risk that a person might be harmed;

(6) failing as an armored car company or its officers, directors, partners, proprietors or responsible management personnel to adequately supervise employees so as to place the public health and safety at risk;

(7) failing to immediately notify the Division of the cancellation of the armored car company's insurance policy;

(8) failing as an armored car company or an armored car security officer to report a criminal offense pursuant to Section R156-63b-612;

(9) pursuant to Subsection R156-63b-612([3]1), failing as an armored car company or an armored car security officer to report to the Division a violation of:

(a) any provision set forth in 18 U.S.C. Chapter 44, 922(g)1-9;

(b) Utah Code Subsection 76-10-503(1); or

(c) Utah Code Subsection 58-63-302(1)([a]h), (2)(c), or (3)(c);

(10) wearing a uniform, insignia, or badge, or displaying a license, that would lead a reasonable person to believe that an individual is connected with an armored car company, when not employed as an armored car security officer by an armored car company; and

(11) failing as an armored car security officer to complete required continuing education hours, in violation of Section R156-63b-304 ; and

(12) failing as an armored car security company to comply with R156-63b-304(6) regarding continuing education courses or providers.

 

KEY: licensing, security guards, armored car security officers, armored car company

Date of Enactment or Last Substantive Amendment: 2019

Notice of Continuation: May 15, 2018

Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-202(1)(a); 58-63-101